According to Erik Walker in Trial magazine (11/10), "The defense in a pharmaceutical case will try to bury you in paper to keep your case from going before a jury. You can defeat every claim-killing motion with arguments grounded in sound legal reasoning and compelling facts."

This is from Walker's article, "Don't Get Papered Over." In the article, Walker suggests responses to two common defense attacks, the learned intermediary doctrine and the statute of limitations.

To summarize the responses here wouldn't do justice to Walker's work. If you're dealing with these issues, get your hands on the full text.

Some judges don't say very much at motion hearings. When they do, however, make sure you're listening to them.

Last year, I saw a judge interrupt a lawyer with a comment. As often happens at a motion hearing, the judge was hearing about the issues for the first time. He was clearly wondering if he was understanding the lawyer. The judge was also a little ahead of the lawyer, and he proposed what he thought was the lawyer's best argument.

As it happened, the judge had it exactly right. But the speaking lawyer was so focused on his own presentation that he ignored the judge. The judge took it as a sign he was on the wrong track. When the judge spoke up again, he was focusing on the wrong issues, some irrelevant considerations that favored the other side.

The speaking lawyer had lost the judge and wasn't going to get him back. The correct way to handle this situation is easy. When the judge speaks, listen. Next, give him some feedback. If he's understanding your point, let him know. If he's not, tell him why not.

It's just basic communication, I suppose, but it's easy to overlook when you're deep into the outline of your own argument.

During a motion hearing, the judge will often ask to see a case that supports the position you're arguing. Be sure to come prepared. Since you can't always predict which particular issue will be troubling to the judge, you might have to bring copies of several cases, some of which are only tangentially related to your main points.

Should you make "clean" copies of these cases for the judge? I don't think so. I prefer to hand the judge my copy--that is, the one for which I've taken the time to highlight all the best language. When the argument ends, that's the copy I magnanimously suggest the judge keep with the file if he or she decides to take the motion under advisement.

Perhaps you're worried that in handing over your copy of a case, you might be left empty-handed if the judge has questions about it during the argument. This isn't a problem if you remember to arrive at court with two identical sets of highlighted cases. When the judge takes your first copy, you can pull out the second for yourself.

Does all this work seem like overkill? It won't the next time your great case (undoubtedly the one you thought didn't matter) persuades the judge to rule in your favor.

At DennisKennedy.blog, a post by Dennis Kennedy titled "Great Advice on Public Speaking" suggests that a speaker's performance improves in proportion to how passionate he or she is about the topic.

It's definitely true. A little passion goes a long way towards ensuring an audience will listen to a message. Throw in some enthusiasm and they may even embrace it.

That these principles apply to a lawyer's performance at trial or motion hearings is obvious. How can you expect a judge or jury to believe in your cause unless you believe in it first?

Admittedly, not every lawyer has the luxury of working exclusively on causes in which they believe. If you happen to lack enthusiasm for your cause, what can you do about it? First, try to make sure it's not too obvious. Second, think about how it affects the settlement equation. Your own lack of enthusiasm often says a great deal about the merits of a case.

In law school, my Contracts professor would turn red when we used too many pronouns in answering his questions about case facts. "They! Who's they? He? Who's he? Quit using pronouns!"

Though we all had a hard time reprogramming ourselves not to use pronouns, my Contracts professor was right: in some situations, pronouns get in the way of comprehension.

I was thinking about my contracts professor last week, when I heard lawyer after lawyer telling a judge during motion hearings that "they" did this and "he" did that until the judge threw up his hands.

Pronouns are even more insidious during depositions. It's almost impossible to use any single answer for impeachment if the question contains a pronoun:

Q. Were you present when he signed the contract?

A. Yes.

Q. Did you see him sign it?

A. Yes.

If you've to go back three pages to find out who "he" and "him" refers to, it makes the deposition transcript very unmanageable as an impeachment tool. While "you" clearly refers to the deponent, every other pronoun does nothing but muck up the works. That's why I try never to use pronouns when taking depositions. It feels completely unnatural at first, but it's possible to learn to do it, especially if you get into the habit of imagining your questions printed on paper as you're saying them to the witness.

Have you been wondering about the basics of class-action litigation under Rule 23 of the Federal Rules of Civil Procedure? If so, take a look at the series of podcasts on this issue by Neil Wehneman, the hardest-working law student in podcasting--

Have you been wondering whether summary judgments are constitutional in light of the fact that the plaintiff might be deprived of a jury trial? At Crime & Federalism, Mike Cernovich posts about a new law-journal article that concludes that summary judgments are, in fact, unconstitutional--a point which you should feel free to preserve for appeal in opposing your next summary judgment, but which I guarantee you'll lose at the trial court level.

If you're thinking about a way to organize an argument to the trial court, you're already way ahead of many lawyers, who often start somewhere in the middle and end up confusing the judge and anyone else who might be listening. See my prior post, "Arguing a Motion Before a Trial Court: Begin at the Beginning."

Rather than starting in the middle, approach your argument like your law school professors used to tell you to approach exams: address each issue one at a time, proceeding step by step without returning to places you've already been.

If you're arguing that a three-count complaint should be dismissed, you might organize your argument like this:

Set the stage as explained in the prior post;

Explain that plaintiff's complaint is in three counts, and that each count fails to state a claim;

State the legal basis for the three claims, e.g., breach of contract, misrepresentation, and unjust enrichment, and explain that you will address each count in turn;

Explain why the breach of contract count fails to state a claim;

Explain why the misrepresentation count fails to state a claim;

Explain why the unjust enrichment count fails to state a claim.

The goal is to present an argument in outline form in such a way that the outline itself becomes part of the presentation. You'll seem better organized, your argument will be easier to understand, and you won't repeat things you've already covered.